Patton v. Rey et al

Filing 3

ORDER (1) Granting Plaintiff's Motion to Proceed in Forma Pauperis [ECF No. #2 ]; and (2) Sua Sponte Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Signed by Judge Cathy Ann Bencivengo on 1/17/2023. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARNOLD PATTON
Inmate No. 20948281,

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ORDER:

Plaintiff,

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Case No.: 3:22-cv-02028-CAB-MDD

(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS [ECF No. 2];

v.
ANTHONY REY, Interim Sheriff;
SONIA L. MANNING, Facility
Commander; MONTGOMERY, Chief
Medical Officer; COUNTY OF SAN
DIEGO,

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AND
(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

Defendants.

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Arnold Patton (“Plaintiff”), currently detained at the Vista Detention Facility

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(“VDF”) in Vista, California, has filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983. See Compl., ECF No. 1. Plaintiff did not pay the filing fee required by 28 U.S.C.

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§ 1914(a) to commence a civil action when he filed his Complaint; instead, he has filed a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF

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No. 2.

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I.

Motion to Proceed IFP

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

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Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-

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month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account

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for the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner

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then collects subsequent payments, assessed at 20% of the preceding month’s income, in

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any month in which his account exceeds $10, and forwards those payments to the Court

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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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Plaintiff has submitted a copy of his San Diego Sheriff’s Department account

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activity statement. See ECF No. 2 at 6-8. Based on this statement, the Court finds that

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Plaintiff has had an average monthly balance of $47.92 and an average monthly deposit of

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$100 for the six months prior to filing this action.

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
Dec., 2020). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP.
Id.
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The Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), and assesses

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an initial partial filing fee of $20.00 pursuant to 28 U.S.C. Section 1915(b)(1)(A). The

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Court directs the San Diego County Sheriff, or their designee, to collect this initial filing

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fee only if sufficient funds are available in Plaintiff’s account at the time this Order is

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executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

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prohibited from bringing a civil action or appealing a civil action or criminal judgment for

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the reason that the prisoner has no assets and no means by which to pay the initial partial

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filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

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Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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based solely on a “failure to pay . . . due to the lack of funds available to him when payment

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is ordered.”). The Court further directs the San Diego County Sheriff, or their designee, to

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collect the remaining balance of the filing fees required by 28 U.S.C. Section 1914 and to

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forward it to the Clerk of the Court pursuant to the installment payment provisions set forth

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in 28 U.S.C. Section 1915(b)(1).

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)

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A.

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Because he is proceeding IFP, Plaintiff’s Complaint is also subject to sua sponte

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review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon

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which relief may be granted, or seek[s] monetary relief from a defendant immune from

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such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763

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(2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if

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the court determines that—(A) the allegation of poverty is untrue; or (B) the action or

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appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be

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granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis

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complaint that fails to state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)

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(per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to

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prisoners.”).

Standard of Review

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain

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sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Plaintiff’s Allegations

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B.

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Plaintiff claims to suffer from vision loss in one eye. See Compl. at 3. Plaintiff

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claims that he has not been “properly treated” and he has “done everything possible to

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request the proper attention” but the “matter is still not resolved.” Id.

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In July, Plaintiff suffered a “major attack” while in his cell due to his “severe

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COPD.” Id. He “asked a deputy if [he] could be taken to medical” but alleges the unnamed

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deputy did not “take him seriously.” Id. When another staff member came by his cell they

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notified medical and Plaintiff was taken to the hospital. See id.

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Finally, Plaintiff claims that there have been “extended periods of lockdown” and a

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staff shortage has resulted in more time spent in cells. Id. at 4. Plaintiff maintains that this

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practice can “lead to many mental health problems.” Id. He further claims the staff

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shortage has resulted in staff becoming “prone to mistakes and mistreatment.” Id.

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Plaintiff names as Defendants the County of San Diego, the Sheriff of San Diego

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County Anthony C. Ray, the Chief Medical Officer Montgomery, and the Facility

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Commander Sonia Manning. See id. at 2. Plaintiff seeks injunctive relief in the form of

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“proper medical care and preventions of long hours on lockdown,” along with

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compensatory and punitive damages. Id. at 6.

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///

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///
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C.

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Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

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statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

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1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege

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two essential elements: (1) that a right secured by the Constitution or laws of the United

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States was violated, and (2) that the alleged violation was committed by a person acting

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under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d

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1030, 1035-36 (9th Cir. 2015).

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D.

42 U.S.C. § 1983

Discussion

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The principles underlying the Eighth Amendment’s prohibition on the infliction of

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cruel and unusual punishment “establish the government’s obligation to provide medical

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care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103

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(1976). However, “[i]t is obduracy and wantonness, not inadvertence or error in good faith,

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that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause,

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whether that conduct occurs in connection with establishing conditions of confinement,

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supplying medical needs, or restoring official control over a tumultuous cellblock.”

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Whitley v. Albers, 475 U.S. 312, 319 (1986). “[A]n inadvertent failure to provide adequate

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medical care,” allegations that “a physician has been negligent in diagnosing or treating a

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medical condition,” or “medical malpractice” do not state an Eighth Amendment claim.

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Estelle, 429 U.S. at 105-06 (“Medical malpractice does not become a constitutional

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violation merely because the victim is a prisoner.”)

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“[A] prison official violates the Eighth Amendment only when two requirements are

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met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.

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Brennan, 511 U.S. 825, 834 (1994), quoting Wilson, 501 U.S. at 298. “Although routine

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discomfort inherent in the prison setting is inadequate to satisfy the objective prong of an

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Eighth Amendment inquiry, ‘those deprivations denying “the minimal civilized measure

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of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment

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violation.’” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), quoting Wilson v. Seiter,
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501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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Second, “a prison official must have a ‘sufficiently culpable state of mind,’” that is,

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“one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834,

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quoting Wilson, 501 U.S. at 302-03. The deliberate indifference prong of an Eighth

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Amendment violation “is satisfied by showing (a) a purposeful act or failure to respond to

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a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “[T]he prison official must not only ‘be

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aware of the facts from which the inference could be drawn that a substantial risk of serious

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harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d

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1051, 1057 (9th Cir. 2004), quoting Farmer, 511 U.S. at 837.

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It appears that the claims in Plaintiff’s Complaint detail events that occurred while

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he was a pre-trial detainee. As a pre-trial detainee, an objective test for deliberate

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indifference under the Due Process Clause of the Fourteenth Amendment is applied rather

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than a subjective test under the Cruel and Unusual Punishments Clause of the Eighth

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Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that the Due

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Process Clause of the Fourteenth Amendment is applicable to claims of pre-trial detainees

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rather than the Eighth Amendment because “Eighth Amendment scrutiny is appropriate

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only after the State has complied with the constitutional guarantees traditionally associated

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with criminal prosecutions.”) Under the objective reasonableness standard, Plaintiff must

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“prove more than negligence but less than subjective intent - something akin to reckless

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disregard.” Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). To state a

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42 U.S.C. § 1983 claim for inadequate medical care or unconstitutional conditions of

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confinement, a pre-trial detainee must plausibly allege that: “(i) the defendant made an

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intentional decision with respect to the conditions under which the plaintiff was confined;

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(ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the

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defendant did not take reasonable available measures to abate that risk, even though a

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reasonable official in the circumstances would have appreciated the high degree of risk

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involved - making the consequences of the defendant’s conduct obvious; and (iv) by not
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taking such measures, the defendant caused plaintiff’s injuries.” Id.
1. County of San Diego

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In order to state a claim against Defendant County of San Diego, Plaintiff must allege

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that: (1) he was deprived of a constitutional right, (2) the County has a policy, custom or

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practice which amounted to deliberate indifference to that constitutional right; and (3) the

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policy, custom or practice was the moving force behind the constitutional violation.

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Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), citing Monell v.

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Department of Social Services, 436 U.S. 658, 694 (1978) (“We conclude, therefore, that a

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local government may not be sued under § 1983 for an injury inflicted solely by its

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employees or agents. Instead, it is when execution of a government’s policy or custom,

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whether made by its lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the government as an entity is responsible

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under § 1983.”) Municipal liability may be shown when an employee who committed the

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constitutional violation was “acting pursuant to an expressly adopted official policy,

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longstanding practice or custom, or as a final policymaker.”

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Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014), citing Monell, 436 U.S. at 694. Municipal

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liability arising from an alleged failure to train jail staff requires allegations “that ‘the need

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for more or different training is so obvious, and the inadequacy so likely to result in the

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violation of constitutional rights, that the policymakers of the city can reasonably be said

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to have been deliberately indifferent to the need.’” Rodriguez v. City of Los Angeles, 891

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F.3d 776, 802 (9th Cir. 2018), quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989).

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Plaintiff’s allegation that inadequate medical care for his vision problems or the

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delay in response to his request for treatment for his COPD, by themselves, fails to state a

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municipal liability claim because “proof of a single incident of unconstitutional activity,”

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or even a series of “isolated or sporadic incidents” will not give rise to § 1983 municipal

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liability. Grant v. County of Los Angeles, 772 F.3d 608, 618 (9th Cir. 1996); Monell, 436

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U.S. at 691 (for an unwritten policy or custom to form the basis of a claim, it must be so

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“persistent and widespread” that it constitutes a “permanent and well settled” practice).

Thomas v. County of

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Rather, liability based on custom, practice or policy “must be founded upon practices of

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sufficient duration, frequency and consistency that the conduct has become a traditional

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method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Facts

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regarding the specific nature of the policy, custom or practice are required, as merely

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stating the subject to which the policy relates, such as medical care, is insufficient. See

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Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (a complaint with

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conclusory allegation of a municipal policy fails to state a claim where it does not “put

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forth additional facts regarding the specific nature of this alleged policy, custom or

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practice.”)

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In addition, Plaintiff has alleged that systemic operational deficiencies caused by

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understaffing have resulted in the conditions of confinement listed in the Complaint, but

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other than the vague allegations relating to his vision care and the one incident that his

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COPD treatment was delayed, he has not set forth any factual allegations regarding how

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those alleged systemic operational deficiencies have affected him. If Plaintiff wishes to

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proceed with a claim against the County of San Diego, he must set forth factual allegations

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which identify a San Diego County custom, policy or practice and plausibly allege a “direct

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causal link between a municipal policy or custom and the alleged constitutional

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deprivation.” Collins v. County of Harker Heights, 503 U.S. 115, 123 (1992); Connick v.

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Thompson, 563 U.S. 51, 60 (2011) (in order to impose liability on a local government under

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§ 1983 a plaintiff must plead and prove that an “action pursuant to official municipal

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policy” caused their injury.) Otherwise, he must allege a failure to train or that an

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“individual who committed the constitutional tort was an official with final policy-making

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authority or such an official ratified a subordinate’s unconstitutional decision or action and

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the basis for it.” Rodriguez, 891 F.3d at 802-03. Even assuming the allegations of systemic

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failures are sufficient to allege a custom or policy of the County of San Diego, Plaintiff has

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not plausibly alleged that custom or policy has resulted in deliberate indifference because

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he has not identified any effect on him, other than a single instance of delay in medical care

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for his COPD and unspecified inadequate treatment for his vision problem, which does not
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plausibly allege a violation of the Eighth or Fourteenth Amendment. See Grant, 772 F.3d

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at 618 (“proof of a single incident of unconstitutional activity,” or even a series of “isolated

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or sporadic incidents” will not give rise to § 1983 municipal liability); Monell, 436 U.S. at

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691 (for an unwritten policy or custom to form the basis of a claim, it must be so “persistent

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and widespread” that it constitutes a “permanent and well settled” practice).

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2. Individual Defendants

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Plaintiff names as the remaining Defendants the Sheriff of San Diego County, the

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Chief Medical Director, and the Facility Commander. Plaintiff does not allege any specific

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factual allegations as to any of these named Defendants. In order to state a claim under 42

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U.S.C. § 1983 against these Defendants, Plaintiff must allege facts sufficient to show that

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each Defendant individually participated in causing a constitutional violation.

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plaintiff must plead that each Government official defendant, through the official’s own

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individual actions, has violated the constitution.” Iqbal, 556 U.S. at 676-77 (rejecting

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argument that “a supervisor’s mere knowledge of his subordinate’s [unconstitutional

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actions] amounts to the supervisor’s violating the Constitution.”) “A supervisory official

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may be held liable under § 1983 only if ‘there exists either (1) his or her personal

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involvement in the constitutional violation, or (2) a sufficient causal connection between

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the supervisor’s wrongful conduct and the constitutional violation.’” Keates v. Koile, 883

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F.3d 1228, 1242-43 (9th Cir. 2018), quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

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2011). “In a section 1983 claim, a supervisor is liable for the acts of his subordinates if the

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supervisor participated in or directed the violations, or knew of the violations of

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subordinates and failed to act to prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th

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Cir. 2009) (internal quote marks omitted).

“[A]

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Plaintiff must set forth factual allegations identifying individual acts or omissions

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by each person related to his medical treatment or conditions of confinement which resulted

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in a constitutional violation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The

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inquiry into causation must be individualized and focus on the duties and responsibilities

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of each individual defendant whose acts or omissions are alleged to have caused a
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constitutional deprivation.”); Gordon, 888 F.3d at 1125 (in order to state a § 1983 claim

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for inadequate medical care or unconstitutional conditions of confinement a pre-trial

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detainee must plausibly allege that: “(i) the defendant made an intentional decision with

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respect to the conditions under which the plaintiff was confined; (ii) those conditions put

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the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take

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reasonable available measures to abate that risk, even though a reasonable official in the

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circumstances would have appreciated the high degree of risk involved - making the

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consequences of the defendant’s conduct obvious; and (iv) by not taking such measures,

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the defendant caused plaintiff’s injuries.”) Plaintiff does not identify any individual

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Defendant who knew of and deliberately ignored his need for treatment. Although Plaintiff

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states he submitted requests for treatment regarding the delay as to his vision care and an

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unnamed deputy did not take his medical claims seriously, there are no factual allegations

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regarding who those requests were directed to or any other facts which plausibly allege any

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individual Defendant was aware of his need for treatment. In addition, allegations of

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differences of opinion over proper medical care, inadequate medical treatment, medical

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malpractice, or even gross negligence by themselves do not rise to the level of an Eighth

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or Fourteenth Amendment violation. See Farmer, 511 U.S. at 835 (“[N]egligen(ce) in

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diagnosing or treating a medical condition” does not amount to deliberate indifference),

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quoting Estelle, 429 U.S. at 105-06 (holding that “an inadvertent failure to provide medical

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care,” allegations that “a physician has been negligent in diagnosing or treating a medical

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condition,” or “medical malpractice” do not state an Eighth Amendment claim as

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“[m]edical malpractice does not become a constitutional violation merely because the

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victim is a prisoner.”); Toguchi, 391 F.3d at 1058 (a disagreement over the necessity or

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extent of medical treatment does not show deliberate indifference); Gordon, 888 F.3d at

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1124-25 (a pre-trial detainee must show more than lack of due care or negligence).

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If Plaintiff wishes to proceed with his claims against any individual Defendant, he

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must provide facts which plausibly allege they “made an intentional decision with respect

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to the conditions under which” he was confined, which placed him “at substantial risk of
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suffering serious harm,” and caused his injuries by failing to “take reasonable available

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measures to abate that risk, even though a reasonable official in the circumstances would

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have appreciated the high degree of risk involved.” Gordon, 888 F.3d at 1125.

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Accordingly, the Court sua sponte dismisses the Complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2).

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E.

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In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading

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to attempt to sufficiently allege a § 1983 claim if he can and if he wishes to attempt to do

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so. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should

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not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)]

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unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

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III.

Leave to Amend

Conclusion and Order

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For the reasons explained, the Court:

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1.

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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

(ECF No. 2).
3.

DIRECTS the Watch Commander VDF, or their designee, to collect from

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Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing monthly

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payments in an amount equal to twenty percent (20%) of the preceding month’s income

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and forwarding those payments to the Clerk of the Court each time the amount in the

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account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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4.

DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

Commander, Vista Detention Facility, 325 South Melrose Drive, Vista, California 92081.
5.

DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and

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GRANTS him thirty (30) days leave from the date of this Order in which to file an
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Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

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Amended Complaint must be complete by itself without reference to his original pleading.

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Defendants not named and any claim not re-alleged in his Amended Complaint will be

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considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

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original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled.”).

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6.

The Clerk of Court is directed to mail Plaintiff a court approved civil rights

complaint form for his use in amending.
IT IS SO ORDERED.
Dated: January 17, 2023

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3:22-cv-02028-CAB-MDD